Opinion
DOCKET NO. A-5551-12T2
02-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NATHAN CRAFT a/k/a BRIAN J. ADAMCZYK, NATHAN KRAFT, NATHON CRAFT and JASON THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-08-1181. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Nathan Craft appeals from his conviction and sentence after entering a conditional guilty plea to one count of first-degree possession of a controlled dangerous substance (CDS) with intent to distribute. On appeal, defendant challenges both the denial of his motion to suppress evidence and his sentence. Having carefully reviewed the record and arguments on appeal, we affirm the conviction, but remand for resentencing.
On August 10, 2012, a grand jury returned a two-count indictment charging defendant with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one), and first-degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count two). In January 2013, defendant moved to suppress the evidence seized in a warrantless search of the car he was driving at the time of his arrest. A hearing on the motion was conducted on January 25 and February 25, 2013. During the hearing, the motion judge heard testimony from Detective Lieutenant Dammann of the Carteret Police Department and defendant, and also reviewed a video recording of defendant's interview with the police at police headquarters. On March 18, 2013, the judge denied defendant's motion. We denied defendant's motion for leave to file an interlocutory appeal.
Thereafter, defendant entered a conditional guilty plea to count two of the indictment on April 17, 2013. The plea agreement called for a seventeen-year-and-three-month term of incarceration, with a five-year-and-nine-month period of parole ineligibility, as well as additional fines and penalties. The plea also allowed defendant to appeal his conviction based upon the judge's denial of his motion to suppress.
Prior to entering the plea on the record, defendant inquired why the State insisted as part of the agreement that defendant be subjected to a parole ineligibility period of five years and nine months. Specifically, defendant contended that the State incorrectly added six months in its calculation under the Brimage guidelines based upon a mistaken belief that defendant committed the offense while he was on parole or probation, as well as the unfounded belief that defendant was a middle or upper-echelon participant in a drug distribution scheme. The State opposed defendant's contention and argued that its calculations were well-founded. The judge offered defendant an opportunity to take additional time to consider whether to proceed with the plea. Defendant declined and entered his guilty plea. On June 17, 2013, defendant was sentenced in accordance with the plea agreement.
State v. Brimage, 153 N.J. 1 (1998).
Defendant filed a notice of appeal on July 23, 2013, challenging the decision on the motion to suppress as well as the sentence. Since a portion of defendant's testimony at the suppression hearing was not recorded, we remanded for a reconstruction of the hearing. A reconstruction hearing was held on January 15, 2015. On January 30, 2015, the judge issued a decision denying defendant's motion.
The following facts are derived from the hearing on defendant's motion to suppress and from the recreation of the record. Carteret police received a tip from an informant in May 2011 that defendant sold drugs out of a house on Essex Street in Carteret, using a silver Chevrolet Impala to make deliveries. Over one year later, on June 8, 2012, Carteret police received a tip from another informant that defendant would be leaving Essex Street in Carteret, driving the Impala, to execute a drug sale in Old Bridge. Based on the information received, the police discovered that the car was not registered to defendant. Soon after receiving the tip, Dammann and another officer were proceeding to Essex Street in Carteret when they observed defendant operating the Impala. As they followed defendant, he made a left turn without activating his turn signal. The officers effectuated a motor vehicle stop.
Upon request, defendant provided the officers with a valid New York driver's license. However, after the officer's conducted a records-check it was determined that defendant's New Jersey driving privilege was suspended. Defendant was placed under arrest for driving while suspended and was read his Miranda rights.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Dammann requested defendant's consent to search the car, to which he responded, "[Y]es, I have no problem with that." Dammann presented a consent-to-search form to defendant for his signature. Dammann first read the form to defendant, then defendant was provided the form for his review. When Dammann asked defendant to sign the form, defendant refused, stating, "I just told you that you can search the vehicle. I don't need to sign anything."
In response, Dammann again explained to defendant his rights regarding a search by consent, particularly his right to be present at the search. Dammann renewed his request to defendant to execute the form. Defendant declined to sign the form, explaining he would not do so because the car was in his girlfriend's name, and stated that he consented to the search and did not need to be present during the search. Dammann wrote on the form, "consent granted with signature refused." The search was then conducted. As a result of the search, a substance later determined to be cocaine was found in the car.
Defendant testified at the hearing that the car was registered to his girlfriend, who is also the mother of his two children.
Defendant testified that he refused to give consent for the search, instructed the officers to get consent from the owner of the car, and was never presented with a consent-to-search form.
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After the search, defendant was transported to police headquarters for a videotaped interview. Defendant was again given Miranda warnings. During the interview, defendant acknowledged that he was provided with a consent-to-search form but refused to sign it. He also denied that he consented to the search. Defendant alleged that he advised Dammann that while he did not mind if the police conducted a search of the car, they would need to obtain consent from the owner.
In the initial written decision denying defendant's motion to suppress, the judge found Dammann's testimony to be credible. The judge, by contrast, found that defendant was "elusive and coy" and "deceptive" during the videotaped interview. Following the reconstruction hearing, the judge renewed the finding that Dammann's testimony was credible. After noting defendant's attempt to backtrack from his consent during the videotaped interview, the judge described him as "deceptive, misleading and less than forthright" as well as "indirect, often times changing the subject when questioned, and less than responsive to questions." The judge concluded in both decisions that defendant voluntarily gave consent to the search, and had full knowledge of his right to refuse consent or withdraw consent at any time.
Defendant raises the following points on appeal:
POINT I
THE DRUGS SEIZED IN THE WARRANTLESS SEARCH OF THE CAR SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE DID NOT OBTAIN DEFENDANT'S KNOWING AND VOLUNTARY CONSENT TO SEARCH.
POINT II
THE SENTENCE MUST BE REMANDED FOR RECONSIDERATION BECAUSE THE PROSECUTOR ERRED IN CALCULATING THE BRIMAGE PLEA.
We first address defendant's argument challenging the denial of his motion to suppress the evidence seized during the motor vehicle stop. Defendant argues that the judge erred in finding that he gave consent, and also that "because defendant misunderstood the law governing consent, he could not give voluntary and knowing consent."
When reviewing an order granting or denying a motion to suppress evidence, we accept those of the trial court's findings of fact that are supported by sufficient credible evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). Deference should be afforded to a trial judge's findings when they are "substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). If the trial court's decision is based upon a legal conclusion, "we conduct a de novo, plenary review." State v. Rockford, 213 N.J. 424, 440 (2013). "A trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference." Gamble, supra, 218 N.J. at 425.
The Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution guarantee the right "of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The Fourth Amendment and Article 1, paragraph 7 of the New Jersey Constitution both "require[] the approval of an impartial judicial officer based on probable cause before most searches may be undertaken." State v. Patino, 83 N.J. 1, 7 (1980). Warrantless searches are presumed invalid. Gamble, supra, 218 N.J. at 425; State v. Lamb, 218 N.J. 300, 315 (2014). "Any warrantless search is prima facie invalid, and the invalidity may be overcome only if the search falls within one of the specific exceptions created by the United States Supreme Court." State v. Hill, 115 N.J. 169, 173 (1989) (citing Patino, supra. 83 N.J. at 7). The State carries the burden of proving the existence of an exception by a preponderance of the evidence. Lamb, supra, 218 N.J. at 315; Gamble, supra, 218 N.J. at 425; State v. Brown, 216 N.J. 508, 527 (2014); State v. Edmonds, 211 N.J. 117, 130 (2012); State v. Bogan, 200 N.J. 61, 73 (2009).
Among the exceptions created by the United States Supreme Court and recognized by our courts is the consent to search exception. Lamb, supra, 218 N.J. at 315 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973); State v. Domicz, 188 N.J. 285, 305 (2006)). To obtain valid consent during the course of a motor vehicle stop, law enforcement must have a "reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity." State v. Carty, 170 N.J. 632, 647, modified on other grounds, 174 N.J. 351 (2002).
It is the State's burden "to establish by clear and positive testimony[,]" State v. King, 44 N.J. 346, 352 (1965), that the consent was knowing and voluntary. Domicz, supra, 188 N.J. at 307; Carty, supra, 170 N.J. at 639. "Voluntariness is a question of fact to be determined from all the circumstances . . . ." Schneckloth, supra, 412 U.S. at 248-49, 93 S. Ct. at 2059, 36 L. Ed. 2d at 875. While an "essential element" of a voluntary search generally includes the consenting party's knowledge that he or she had the right to refuse consent, Domicz, supra, 188 N.J. at 307, only the target of the investigation is required to be so informed. See State v. Farmer, 366 N.J. Super. 307, 314 (App. Div.) (person having apparent authority to consent to a search need not be informed of the right to refuse consent), certif. denied, 180 N.J. 456 (2004).
Consent may be obtained from the person whose property is to be searched, a third party with common authority over the property to be searched, or a third party whom law enforcement reasonably believe has the authority to give consent. State v. Maristany, 133 N.J. 299, 305 (1993). "A third party who possesses 'common authority over or other sufficient relationship' to the property sought to be inspected may consent to its search." State v. Suazo, 133 N.J. 315, 320 (1993) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974)). "That authority to consent arises from the mutual use of the property by persons generally having joint access or control for most purposes . . . ." Ibid. (citation and internal quotation marks omitted).
Here, based upon information received from a confidential informant, the police had a reasonable and articulable suspicion that defendant was distributing narcotics from the residence in Carteret using the Impala. Defendant, who was driving a vehicle which the informant stated he used in the past, and which he acknowledged was his girlfriend's car, had the apparent authority to grant consent to the search. Even if he did not, predicated upon the circumstances, we conclude the police reasonably believed defendant had that authority. Ibid. The "appearance of control at the time of the search," and "not any subsequent resolution of questions of title or property rights," are to be considered when assessing the validity of a search. Farmer, supra, 366 N.J. Super. at 313 (citation and internal quotation marks omitted). Accordingly, defendant's argument that he did not have authority, or that there was a perceived lack of authority because he did not own the car, is unavailing.
Although obtaining a signed consent-to-search form is preferable, there is no statutory or precedential requirement for the execution of a form to justify a search by consent. Rather, all that is required is that defendant's consent was knowing and voluntary. Domicz, supra, 188 N.J. at 307; Carty, supra, 170 N.J. at 639. During the stop and investigation, defendant affirmatively gave consent multiple times — his answers were unambiguous and clearly articulated an understanding of the circumstances and his right to refuse or withdraw consent. Stated otherwise, the consent was "unequivocal and specific" and "freely and intelligently given." King, supra, 44 N.J. at 352 (quoting Judd v. United States, 190 F.2d 649, 651 (D.C. Cir. 1951). Moreover, Dammann's testimony, which was credited by the judge, revealed that defendant carefully read the consent-to-search form, which explicitly advises motorists of their right to refuse consent. Dammann also read the form to defendant and explained defendant's rights to him. Thus, the State has carried its burden of "demonstrating knowledge on the part of the person involved that he had a choice in the matter." State v. Johnson, 68 N.J. 349, 354 (1975).
The record supports the determination by the motion judge that defendant had authority to grant consent to the search, was aware he could refuse consent, and consented to the search knowingly and voluntarily at the time of the stop. Furthermore, the police had a reasonable articulable suspicion that defendant possessed narcotics. Further, we defer to the trial judge's credibility determinations regarding the defendant's statements prior to and during the interview at police headquarters. Gamble, supra, 218 N.J. at 424; Elders, supra, 192 N.J. at 243; Johnson, 42 N.J. at 161.
We turn next to defendant's sentence. Defendant argues that the State erred in calculating its Brimage plea offer when it attributed six extra points in its calculation based upon the mistaken belief that defendant was on parole or probation at the time of the offense. The State does not acknowledge that there was a miscalculation. Instead, the State argues the sentence was proper because defendant voluntarily accepted the plea and the offer was based upon "the criminal history documentation available to the prosecutor at the time of the plea hearing." Notwithstanding whether there was a miscalculation, the State argues that defendant still received a favorable plea within the Brimage guidelines.
Where a challenge is made to a prosecutor's calculation (or miscalculation) of aggravating and mitigating factors informing a Brimage plea offer,
the defendant must show by clear and convincing evidence that the prosecutor's challenged decision reflects a gross and patent abuse of discretion because the facts upon which the prosecutor relied to assess an aggravating factor do not, under any reasonable interpretation, support the factor, or because the prosecutor clearly overlooked certain facts that indisputably would constitute a mitigating factor.
[State v. Coulter, 326 N.J. Super. 584, 590 (1999).]
The State has the obligation of showing "how it arrived at the normative sentence recommendation." State v. Veney, 327 N.J. Super. 458, 461 (App. Div. 2000). Stated otherwise, a prosecutor must "prepare the [plea negotiation worksheets] against charges of arbitrariness in order to facilitate the explanation of exactly how the prosecutor arrived at the plea offer." Coulter, supra, 326 N.J. Super. at 589 (citations and internal quotation marks omitted). "A mistake in the application of the [Brimage] [g]uidelines obviously does not promote the goal of uniformity." Veney, supra, 327 N.J. Super. at 461.
Notwithstanding the State's argument that defendant would have received the same sentence, defendant's perceived parole or probationary status was a factor in the State's plea calculation which added six months to the ultimate sentence. As a matter of fundamental fairness, defendant should be permitted to challenge the Brimage calculation based upon the State's consideration of an unsupported aggravating factor. We therefore remand for a "non-plenary type" hearing to determine whether the State's offer was arbitrary and capricious under the circumstances. See Coulter, supra, 326 N.J. Super. at 589.
For the foregoing reasons, we affirm defendant's conviction. We remand for reconsideration of defendant's sentence consistent with this opinion.
Affirmed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION